Back to the Future: How the Holding of Shelby County V. Holder Has Been a Reality for South Dakota Native Americans since 1975

Reed, Kristopher A., South Dakota Law Review

In Shelby County v. Holder the United States Supreme Court held that Section 4(b) of the Voting Rights Act was unconstitutional. The Court's holding rendered Section 5 of the Voting Rights Act toothless, causing some to fear voting rights would regress to the days of Jim Crow. This fear of a future without Section 5 is nothing new for South Dakota Native Americans since the state government refused to comply with Section 5 of the Voting Rights Act. While other states begin to experience the consequences of Shelby, South Dakota Native Americans remain all too familiar with its effects. This comment seeks to raise awareness of the continued denial of Native American voting rights in South Dakota and to emphasize the need for Section 5 preclearance. First, this comment explores the development of the Voting Rights Act and its impact on South Dakota Native Americans. Second, this comment discusses the intricacies of Shelby that changed the strength and purpose of the Voting Rights Act. Third, this comment reviews how "new" issues for some states are "old" issues for South Dakota Native Americans. Finally, this comment examines attempted legislation and possible solutions to restore the protections granted by Section 5.

I. INTRODUCTION

In Shelby County v. Holder, (1) Chief Justice John Roberts wrote, "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." (2) The Supreme Court then resolved to remove the best protection against discriminatory voting laws in jurisdictions with the worst history of denying voting rights to minority groups--Section 5 of the Voting Rights Act of 1965 ("VRA") which required congressional preclearance of any changes to a jurisdiction's voting laws. (3) The Court based its reasoning on the idea that overt discrimination and voter denial present during the passage of the VRA--so called "first-generation" discrimination--was no longer an issue. (4) Thus, the method of selection for preclearance required an update. (5) The Court's majority must have been unaware of the conditions South Dakota Native Americans presently experience, a situation where conditions have not improved to the point that preclearance is no longer needed. (6)

Native Americans' lack of representation and participation in voting comes from years of cultural suppression. (7) Native Americans faced cultural genocide efforts and far worse since the country's founding. (8) Generations of Native Americans experienced complete cultural exclusion through placement on reservations, negative effects of ignored and altered treaties, and constant struggles for the fundamental right to vote, which is still denied or restricted to this day. (9) Much of this animosity stems from the co-sovereign relationship between tribes and the Federal Government and the struggle to define that relationship for both parties. (10) While tribes are recognized as sovereign nations, their sovereignty is often pre-empted by federal interests. (11) The states fared no better in respecting the sovereignty of the tribes. (12) This disregard of Native Law and lack of respect for Native Americans serves to create feelings of social rejection and diminishes the tribe's view of federal and state elections. (13)

Feelings of rejection are compounded by South Dakota's attempt to shut out the Native American vote. (14) In 2002, Bennett County held an election for county commissioners where the Democratic candidate was a Native American and the State Democratic Party recruited three Caucasian candidates to run as Independents against the Democratic nominee. (15) Also in 2002, South Dakota Senator Tim Johnson won reelection by 524 votes. (16) The election witnessed record Native American voter turnout and was credited as the reason Senator Johnson won reelection. (17) The State almost immediately assumed voter fraud was responsible for Johnson's victory. …

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